Acree v. County Board of Education of Richmond County, GA and Combined School Board Cases Supplemental Brief for Intervenors and Appellants

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UNTY BOARD WNo. 22723 ACREE, et al. v.

No. 23255 HENRY, et al. v.

No. 22759 DAVIS, et al. v.

No. 23274 UNITED STATES, et al. v.
No. 23116 DAVIS, et al. v.

No. 23331 UNITED STATES, et al. v.

No. 23335 UNITED STATES, et al. v.

No. 23345 UNITED STATES, et al. v.

No. 23365 UNITED STATES, et al. v.
Appellants

EDUCATION OF 
RICHMOND COUNTY, GEORGIA, et al. 
CLARKSDALE MUNICIPAL SEPARAT] 
SCHOOL DISTRICT, et al.
BOARD OF SCHOOL COMMISSIONER 
OF MOBILE COUNTY, et al.
CADDO PARISH SCHOOL BOARD, et a 
EAST BATON ROUGE PARISH SCHOO: 
BOARD, et al.
FAIRFIELD BOARD OF EDUCATION 
et al.
BOARD OF EDUCATION OF CITY 0] 
BESSEMER, et al.
JEFFERSON COUNTY BOARD OF EDO 
CATION, et al.
BOSSIER PARISH SCHOOL BOARD, et a

Appellees

ON A PPEA L FROM  T H E  U N IT E D  STATES D ISTRICT COURTS FOR T H E  N O R T H E R N  AND 
SO U TH ER N  D ISTR IC TS OP ALABAMA, SO U TH ERN  D ISTRICT OF GEORGIA, EASTERN  
AND W E ST ER N  D ISTRICTS OF LO U ISIA N A  AND N O R T H E R N  D ISTRICT OF M IS S IS S IP P I

SUPPLEMENTAL BRIEF FOR INTERVENORS AND APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, I I I  
MICHAEL MELTSNER 
LEROY D. CLARK 
NORMAN C. AM AKER 
ALFRED FEINBERG 

10 Columbus Circle 
New York, New York

DAVID H. HOOD
2001 Carolina Avenue 
Bessemer, Alabama

JESSE N. STONE, JR. 
854% Texas Avenue 
Shreveport, Louisiana

A. P. TUREAUD
1821 Orleans Avenue 
New Orleans, Louisiana

VERNON Z. CRAWFORD 
578 Davis Avenue 
Mobile, Alabama

OSCAR W. ADAMS, JR,
1630 Fourth Avenue North 
Birmingham, Alabama

DEMETRIUS C. NEWTON 
408 North 17th Street 
Birmingham, Alabama

JOHNNIE JONES
530 South 13th Street 
Baton Rouge 2, Louisiana

JOHN Ii. RUFFIN, JR.
930 Gwinnett Street 
Augusta, Georgia

HOWARD MOORE, JR.
859% Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Intervenors and Appellants

CONRAD K. HARPER 
Of Counsel

JA M ES M. NABRIT, lill



IN THE

H&nxUb ( t o r t  n f  A p p e a l s
FOR THE FIFT H  CIRCUIT

No. 22723 ACREE, et dl. v.

No. 23255 HENRY, et al. v.

No. 22759 DAVIS, et al. v.

No. 23274 UNITED STATES, et al. v.
No. 23116 DAVIS, et al. v.

No. 23331 UNITED STATES, et al. v.

No. 23335 UNITED STATES, et al. v.

No. 23345 UNITED STATES, et al. v.

No. 23365 UNITED STATES, et al. v.
Appellants

COUNTY BOARD OF EDUCATION OF 
RICHMOND COUNTY, GEORGIA, et al.
CLARK,SDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, et al.
BOARD OF SCHOOL COMMISSIONERS 
OF MOBILE COUNTY, et al.
CADDO PARISH SCHOOL BOARD, et al.
EAST BATON ROUGE PARISH SCHOOL 
BOARD, et al.
FAIRFIELD BOARD OF EDUCATION, 
et al.
BOARD OF EDUCATION OF CITY OF 
BESSEMER, et al.
JEFFERSON COUNTY BOARD OF EDU­
CATION, et al.
BOSSIER PARISH SCHOOL BOARD, et al.

Appellees

ON A PPEA L FROM  T H E  U N IT E D  STATES D ISTRICT COURTS FOR T H E  N O R T H E R N  AND 
SO U TH ER N  D ISTRICTS OF ALABAMA, SO U TH ERN  D ISTRICT OF GEORGIA, EA STERN  
AND W E ST ER N  D ISTRICTS OF LO U ISIA N A  AND N O R T H E R N  D ISTRICT OF M IS S IS S IP P I

SUPPLEMENTAL BRIEF 
FOR INTER VENOUS AND APPELLANTS

A R G U M E N T

This Court Should Rely Upon Applicable HEW Guide­
lines in School Segregation Cases Provided the Guide­
lines, Where Followed, Effect Actual Desegregation.

In answer to the April 21, 1966 letter of the Clerk to 
this Court, the undersigned counsel urge that the HEW 
guidelines1 be adopted as minimum standards for all school

1 The United States Office of Education Department of Health, Educa­
tion and Welfare, Revised Statement of Policies for School Desegrega-



9,

desegregation plans, provided the guidelines, where fol­
lowed, effect meaningful desegregation. Such a policy as­
sures desirable uniformity among school districts within 
the jurisdiction of this Court. The guidelines, moreover, 
represent the expert judgment of the United States Office 
of Education staff that all school districts are capable 
of accomplishing certain preliminary or elementary deseg­
regation goals. These expert judgments, formulated after 
opportunity for fact finding and consultation not readily 
available to the judiciary, are entitled to great weight, 
cf. Price v. Denison Independent School District, 348 
F.2d 1010 (5th Cir. 1965); Udall v. Tollman, 380 U.S. 1 
(1965), even where delicate constitutional questions are 
involved, cf. Zemel v. Rush, 381 U.S. 1 (1965). Regula­
tions promulgated pursuant to congressional authoriza­
tion2 generally have the force of statute. Federal Crop 
Ins. Corp. v. Merril, 332 U.S. 380, 385-86 (1947) (wheat 
crop insurance regulations); Standard Oil Company v. 
Johnson, 316 U.S. 481, 489 (1942) (War Department 
regulations); Arizona Grocery Company v. Atcheson, 
Topeha and Santa Fe Railroad Co., 284 U.S. 370, 386 
(1932) (ICC regulations). The result should not be dif­
ferent in the instant cases where either the United States 
is a party or private litigants have borne the brunt of 
seeking constitutionally required desegregation.

tion (March 1966) [hereinafter cited as Revised Statement] 45 CFR, 
Part 181.

2 Section 602 of the 1964 Civil Rights Act, 78 Stat. 252, 42 U.S.C. 
§2000d-l (1964), specifically provides for the issuance of rules and regula­
tions, consistent with the Act, by federal departments empowered to extend 
federal financial assistance to any program, other than a program in­
volving a federal contract of insurance or guaranty. Guidelines are issued 
pursuant to §602. Revised Statement §181.1. Section 602 embodies a well 
known congressional practice. See Shapiro, The Choice of Rulemaking 
or Adjudication in the Development of Administrative Policy, 78 Harv. 
L. Rev. 921, 958-71 (1965).



3

The guidelines have not been formulated in a context 
unsympathetic to local problems; §§403 through 405 of 
the 1964 Civil Eights Act3 provide that, upon request, 
the Commissioner of Education may render technical as­
sistance to public school systems engaged in desegrega­
tion. The Commissioner may also establish training in­
stitutes to counsel school personnel having educational 
problems occasioned by desegregation; and the Commis­
sioner may make grants to school boards to defray the 
costs of providing in-service training on desegregation. 
In short, the Commissioner may assist those school boards 
who allege that they will have difficulty complying with 
the guidelines. In view of these facts, especially the as­
sistance which may be furnished to meet alleged difficulties, 
there is a heavy burden on those who would argue that 
they cannot meet HEW standards. None of the school 
boards in these cases has met that burden; indeed, none 
of them has indicated that it cannot desegregate its school 
system by the HEW deadline of September, 1967.

The failure of this Court to adopt standards at least 
as stringent as the guidelines would encourage litigation 
by recalcitrant school boards, cf. Singleton v. Jackson 
Municipal Separate School District, 348 F.2d 729, 731 (5th 
Cir. 1965), because court-ordered desegregation plans are 
exempted from the guidelines. Revised Statement §181.6. 
Where school boards’ plans do not meet minimum stan­
dards,4 this Court should invite HEW to enter such cases

3 78 Stat. 247-48, 42 U.S.C. §§2000c-l through 2000c-3 (1964).
4 As of May 6, 1966, counsel are informed that, with one exception to 

be mentioned, none of the school boards, in the nine eases for which this 
brief is filed, has complied with the HEW  guidelines. This is so because 
under Revised Statement §181.6, school boards under a court order need 
only file a copy of said order, which the school boards have done. The 
single exception is the County Board of Education of Richmond County, 
Georgia, No. 22723 in this Court, which has filed form 441-B with the



4

with a view towards raising the plans to the level of the 
guidelines. This position is, therefore, substantially similar 
to that advanced by the United States in its suggested 
specific decree in seven school segregation cases now pend­
ing in this Court.5 We would emphasize, however, that 
the adoption of a specific decree in these cases framed in 
terms of the guidelines is only a partial answer to the 
segregation problem. Thus, we go further than the posi­
tion taken by the United States. Uppermost must be the 
actual realization of desegregation. The assistance fur­
nished by HEW to local school boards desegregating 
under a court order would provide an effective method of 
bringing about this meaningful desegregation.

Of course, the focus of the courts must be, under Brown 
v. Board of Education, 347 U.S. 483 (1954), on the realiza­
tion of desegregated education, if necessary, irrespective 
of the guidelines. The courts must require that those 
plans conforming to the guidelines operate to provide a 
desegregated education. For those matters not covered 
by the guidelines, such as school construction programs 
perpetuating segregated education and the need to up­
grade inferior schools which in fact remain all-Negro,6

Department of Health, Education and Welfare. The Richmond County 
Board has not filed any of the other extensive information necessary to 
bring it into full compliance with the guidelines. This information was 
obtained from the office of Mr. David S. Seeley, Assistant Commissioner 
of the Equal Educational Opportunities Program in the Department of 
Health, Education and Welfare.

5 Vol. IV of Appendix to briefs of the United States in Nos. 23173, 
23192, 23274, 23331, 23335, 23345, 23365.

6 Revised Statement, §181.15 speaks only of closing the “small, inade­
quate” Negro school.

Overcrowded Negro schools exist in Clarksdale, Miss., Brief for Appel­
lants in No. 23255, pp. 10-14; East Baton Rouge, La., Brief for Appellants 
in No. 23116, pp. 9-10; Fairfield, Ala., Brief for Intervenors in No. 23331, 
pp. 19-20; and Jefferson County, Ala., Brief for Intervenors in No. 23345, 
p. 10. Proportionally more funds are spent on white schools than on Negro



5

the courts must also frame mandates designed to make 
equal educational opportunity a reality. School author­
ities must be put on notice that the only valid plan is 
one which effects desegregation. To this end frequent 
and comprehensive court review of the facts of desegrega­
tion is a necessity. See the order in Carr v. Montgomery 
Board of Education, Civil No. 2072-N, M.D. Ala., March 22, 
1966, requiring periodic reports from the school board. 
Where the facts reveal that actual desegregation is not 
taking place, courts should require school boards to take 
effective affirmative steps such as ordering rezoning or 
other assignment methods. The opinion in Dowell v. School 
Board of Oklahoma Public Schools, 244 F. Supp. 971 
(W.D. Okla. 1965) (appeal pending, 10th Circuit, No. 
8523), illustrates the comprehensiveness of a court man­
date designed to guarantee desegregation.

Brown v. Board of Education, 349 U.S. 297 (1955), 
held that:

Once such a start [toward desegregation] has been 
made, the courts may find that additional time is 
necessary to carry out the ruling in an effective man-

schools in Clarksdale, Miss., Brief for Appellants in No. 23255, pp. 8, 
12-13; and in Fairfield, Ala., Brief for Intervenors in No. 23331, p. 20. 
The physical facilities of Negro schools are inferior to those of whites in 
Bossier Parish, La., Brief for Appellant Lemon in No. 23365, pp. 8-9; in 
Jefferson County, Ala., Brief for Intervener in No. 23345, pp. 9-10; in 
Bessemer, Ala., Brief for Intervenors in No. 23335, pp. 16-18; in Fair- 
field, Ala., Brief for Intervenors in No. 23331, p. 20; and in Mobile 
County, Alabama, Brief for Appellants in No. 22756, pp. 13-14. Negro 
schools have course offerings inferior to those provided in white schools in 
Richmond County, Ga., Brief for Appellant in No. 22723, p. 2; in Bossier 
Parish, La., Brief for Appellant Lemon in No. 23365, pp. 7-8; in Jefferson 
County, Ala., Brief for Intervener in No. 23345, p. 9; in Bessemer, Ala., 
Brief for Intervenors in No. 23335, p. 16; in Fairfield, Ala., Brief for 
Intervenors in No. 23331, p. 21; in Mobile County, Ala., Brief for Appel­
lants in No. 22759, p. 14; and in Clarksdale, Miss., Brief for Appellants 
in No. 23255, p. 5, n.5.



6

ner. The burden rests upon the defendants [i.e., the 
school boards] to establish that such is necessary in 
the public interest and is consistent with good faith 
compliance at the earliest practicable date. 349 U.S. 
at 300 (emphasis supplied).

Eleven years later, none of the school boards in these 
cases has given sufficient justification for any delay. None 
has alleged that it cannot comply with the HEW goal of 
desegregation by September 1967, thus the least that can 
be required of them is conformity to HEW’s standards.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, I I I  
MICHAEL MELTSNER 
LEROY D. CLARK 
NORMAN C. AMAKER 
ALFRED EEINBERG

VERNON Z. CRAWFORD 
578 Davis Avenue 
Mobile, Alabama

OSCAR W. ADAMS, JR.
1630 Fourth Avenue North 
Birmingham, Alabama10 Columbus Circle

New York, New York 

DAVID H. HOOD
DEMETRIUS C. NEWTON 

408 North 17th Street 
Birmingham, Alabama2001 Carolina Avenue

Bessemer, Alabama 

JESSE N. STONE, JR.
JOHNNIE JONES

530 South 13th Street 
Baton Rouge 2, Louisiana854% Texas Avenue 

Shreveport, Louisiana JOHN H. RUFFIN, JR. 
930 Gwinnett Street 
Augusta, Georgia

A. P. TUREAUD
1821 Orleans Avenue 
New Orleans, Louisiana HOWARD MOORE, JR.

859% Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Intervenors and A ppellants

CONRAD K. HARPER 
Of Counsel



7

Certificate o f Service

This is to certify that a copy of the foregoing supple­
mental brief has been served on each of the attorneys for 
appellees and the United States, as listed below, by being 
deposited in the United States mail, air mail, postage 
prepaid, on this day of May, 1966:
Hon. John A. Richardson 

District Attorney 
1st Judicial District 
Caddo Parish Courthouse 
Shreveport, Louisiana

Hon. William P. Schuler
Assistant Attorney General 
201 Trist Building 
Arabi, Louisiana

Mr. J. Bennett Johnston, Jr.
930 Giddens Lane Building 
Shreveport, Louisiana

Mr. Macon Weaver
United States Attorney 
Federal Building 
Birmingham, Alabama

Mr. Maurice F. Bishop 
Bishop & Carlton 
325-29 Frank Nelson Building 
Birmingham, Alabama

Mr. Reid B. Barnes
Lange, Simpson, Robinson & 

Somerville
317 North 20th Street 
Birmingham, Alabama

Hon. Jack P. F. Gremillion 
Attorney General 
State Capitol 
Baton Rouge, Louisiana

Mr. David L. Norman
Department of Justice 
Washington, D. C.

Mr. Edward L. Shaheen 
United States Attorney 
Federal Building 
Shreveport, Louisiana

Mr. J. Howard McEniry
McEniry, McEniry & McEniry 
1721 4th Avenue North 
Bessemer, Alabama

Hon. Louis H. Padgett, Jr.
District Attorney 
Bossier Bank Building 
Bossier City, Louisiana

Hon. John Dear
St. John Barrett 
Peter Smith 
Department of Justice 
Washington, D.C. 20530

George F. Wood, Esq.
510 Van Antwerp Building 
Mobile, Alabama

Franklin H. Pierce, Esq.
Southern Finance Building 
Augusta, Georgia

Ed Foulcher, Esq.
520 Green Street 
Augusta, Georgia

Semmes Luckett, Esq.
121 Yazoo Avenue 
Clarksdale, Mississippi 38614

John F. Ward, Esq.
Burton, Roberts and Ward 
206 Louisiana Avenue 
Baton Rouge, Louisiana

Attorney for Intervenors and 
Appellants



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